Is it time to change sentencing laws?

Monday

Apr 26, 2010 at 12:01 AM

Florida's mandatory minimum sentencing laws, among the toughest in the country, blanket everything from drug and gun crimes to parole and probation violations. Such laws have helped push Florida's state prison population past the 100,000 mark, outpaced only by California and Texas.

By Suevon LeeStaff writer

Florida's mandatory minimum sentencing laws, among the toughest in the country, blanket everything from drug and gun crimes to parole and probation violations.Such laws have helped push Florida's state prison population past the 100,000 mark, outpaced only by California and Texas.Last month, The Pew Center on the States reported that the nation last year experienced an overall decline in the number of state prisoners for the first time in 37 years. Florida was one of 24 states that continued to see an increase, and one of five states that accounted for more than half the increase.Experts say that a greater number of individuals are serving longer prison terms than ever before, plus returning to prison with a greater degree of frequency because of probation violations, owing in large part to sentencing policies that some argue are too one-size-fits-all - and need to be changed."Mandatory minimums is not intelligent. It's attacking crime with a blunderbuss. We need more finely tuned weapons to deal with crime," argued Robert Batey, a criminal law professor at Stetson University.While other states have enacted measures repealing decades-old mandatory sentencing laws in the face of rising corrections costs, Florida has yet to follow suit."The difference between Florida and quite a few other states is that [Florida lawmakers] haven't taken the comprehensive look at the laws that have been enacted and the impact of those laws," said Linda Mills, who's been consulting non-profit organizations on Florida justice reform issues since 2005.Experts are hopeful that the tide may be slowly turning."We've identified Florida as being particularly problematic because of the length of the drug mandatory minimums. We also think some really good stuff is happening in Florida," said Deborah Fleischaker of the Washington, D.C.-based group Families Against Mandatory Minimums, which has spearheaded a lobbying effort in Florida."People are starting to pay attention because the budget is a mess," she said.

Fifteen years ago, Florida's corrections budget was $1.6 billion, or 9.4 percent of the state's total budget. By fiscal year 2009-2010, that corrections budget ballooned to $2.4 billion, consuming about 11 percent of the general revenue fund.With Florida now facing an approximately $3 billion budget shortfall heading into 2010-2011, recent prison projection estimates have turned this forecast even stormier.Already at 101,467 inmates in February, the state's prison population is expected to swell to more than 115,000 by 2015, requiring the construction of nine new prisons and a cost to taxpayers of more than $862 million, according to a March report from the Office of Program Policy Analysis & Government Accountability.Aware of this trend, The Collins Center on Public Policy, an independent think tank with offices in Miami and Tallahassee, formed a steering committee in early 2009 to propose a series of recommendations for reform.In February, the committee's report suggested, among other things, to re-evaluate mandatory minimums for low-level drug and theft offenses; expand drug courts; implement more faith- and character-based prisons; and ensure that a Correctional Policy Advisory Council established by the Legislature in 2008 finally meets."It is time for our state to rethink thirty-year-old policies that may have served the state well in their time. But their time has passed. We know more now," the authors wrote. "Continuing to pour money into a bloated prison system in a time of fiscal austerity is not only unsustainable, it confounds common sense."April Young, vice president of Criminal Justice Initiatives at the Collins Center, said it's not possible to reduce correctional costs without discussing sentencing reform."If we're spending all this money on corrections, we have to look critically at what it's getting us and what we forgo as we make these choices," she said. "What we're interested in is incarcerating people appropriately."Florida's first mandatory sentencing laws for drugs were introduced in 1979, around the time Miami was known as the "drug capital of the Western Hemisphere."Today, possessing an amount of marijuana greater than 25 but less than 2,000 pounds, or cocaine greater than 28 but less than 200 grams, nets a minimum three-year sentence. As the amount goes higher, these minimums rise to either seven or 15 years.

The punishment appears even more extreme for other types of drug offenses. Possessing 28 grams of non-prescribed prescription bills such as oxycodone or hydrocodone - the equivalent to one bottle of pills - triggers a mandatory minimum sentence of 25 years."You're supposed to reduce the charge if a [defendant] gives you substantial assistance. The idea was, you're going to get the little guy to get the big guy. But that's not what's happening in the pill cases," said Sixth Circuit State Attorney Bernie McCabe, whose district covers Pinellas and Pasco counties.These mandatory drug laws were in effect even as the state revised its correctional policies. Parole was abolished in 1983. In February 1987, the Department of Corrections began implementing early release of inmates due to the lack of prison space. The average prison term then was 33 percent of court-given sentences. Early release continued until December 1994 - by then, Florida was undergoing a massive and accelerated prison-building program.By 1995, the Legislature passed a "truth-in-sentencing" policy requiring all offenders to serve at least 85 percent of their prison sentences.By 1999, a new category of mandatory gun laws, proposed by Gov. Jeb Bush during his campaign a year earlier, was introduced. Under 10-20-Life, possessing a firearm during a crime such as murder, robbery or sexual battery nets a minimum 10-year sentence. If the firearm is discharged, the sentence rises to 20 years. If someone is seriously injured or killed, that's an automatic life sentence.While it had been possible to receive a mandatory three years in gun-related cases where one commits or attempts to commit aggravated assault since as far as back as the 1970s, 10-20-Life also made possessing a firearm by a convicted felon subject to a three-year mandatory sentence."This (10-20-Life) was supposed to send a message to the population," Stetson's Batey said. "The people who deserve these kinds of sentences could have gotten them anyway, because judges have the discretion to sentence up to these numbers."Linda Mills recalls that the passage of 10-20-Life was championed by the state at the time. "It became a brand, like Coca-Cola," she remembers. "Like, 'Florida: 10-20-Life.' "Those who don't particularly view mandatory minimum sentencing laws as problematic will often turn the discussion back to the issue of public safety."The general principle of having a mandatory minimum is a good one," said Ric Ridgway, chief assistant to 5th Circuit State Attorney Brad King in Ocala. "Ultimately, it's favorable to public safety. The crime rate is generally down. You've got to see that at least some of the people are locked up doing mandatory minimums."

Florida's crime rate, like the nation's, has been dropping. Its overall index crime rate experienced a 6.4 percent decline in 2009, reaching a 39-year low. According to the Pew Center, the national index crime rate in 2008 was 37 percent lower than the historic high in 1990.But that doesn't translate to fewer prisoners. The Pew Center finds that a growing parole and probation population, and the pattern of sending offenders back to prison when they violate probation, has "kept the prison population increasing during a time when crime declined.""From a standpoint that there are very dangerous people that can be removed from society for a number of years, they (mandatory minimums) surely have served their purpose," said Circuit Judge Stanford Blake, who spent 15 years on the criminal bench in Miami-Dade County.But, he added, "The Legislature understands and the people understand that if you pass these things and house people in prison, there is a cost involved."Critics say mandatory minimum sentencing laws have shifted the power balance of the justice system, assigning more authority to the state attorneys who make charging decisions and less to judges, who have lost discretion in sentencing.A judge may depart downward from a mandatory sentence in only two circumstances: when a defendant is sentenced as a youthful offender, or when a judge approves the state's motion to reduce or suspend a sentence based upon the defendant providing "substantial assistance" in connection to another case. The State Attorney's Office has the authority to waive a mandatory minimum or amend a charge.Some say such laws could have an unintended effect: Confronted with tough sentences, defendants have nothing to lose by going to trial."It sort of prohibits effective plea bargaining, which results in more trials, which are more time-consuming and expensive," said Umatilla defense attorney Ronald Fox.It's an issue that outrages many defense attorneys, confounds legal experts, resigns some judges and leaves those most affected by such laws - the criminally charged - often with little option."When you're in criminal court, you deal daily with human land mines. There are times we have discretion, there are times we do not," Judge Blake said.

This story was supported in part by a fellowship with the Harry Frank Guggenheim Foundation and the Center on Media, Crime and Justice at John Jay College in New York.